The friends of Lindsey Graham, Part Two

Last week I criticized the “Dear Friends” lettter Sen. Graham sent to a group of called the National Coalition to End Judicial Filibusters. The group had written Graham to express concern about his actions blocking the confirmation process of Jim Haynes. Now the “Friends” themselves have responded to Graham. Most of the points have been made on Power Line, but the letter, which I’ve slightly edited for length, is worth reading as a comprehensive take down of Graham’s position:

As you know, we are concerned about your lack of support for the nomination of William “Jim” Haynes to the U.S. Court of Appeals for the Fourth Circuit, which is effectively blocking him in committee nearly three years after he was nominated.

Your letter says that you look forward to hearing Mr. Haynes’s answers to the questions that you and other senators will ask of him during a second Judiciary Committee hearing. But your opposition appears to be preventing such a hearing.

We note that when Mr. Haynes had his first hearing on November 19, 2003 you were absent. We are left to wonder whether in the two years that Mr. Haynes has been delayed, you have sent him any written questions that would have allowed him the courtesy of addressing your concerns.

You state that you are proud of the role you played in helping to confirm William Pryor, Priscilla Owen, and Janice Rogers Brown. As an integral part of that effort, you fought for the principle that judicial nominees with majority support are entitled to an up or down vote on the Senate floor. You even made the issue of obstruction of nominees part of your 2002 election campaign.

In fact, on November 11, 2003, on the eve of the grand 40 hour debate on judicial nominations, you said, “[T]he President’s nominees deserve a straight up-or-down vote. If they get this, they will be confirmed.” Your press release of November 11, 2003 is still on your site.

You were right. Unfortunately, your opposition to Mr. Haynes now threatens to damage this important principle. As Charleston’s Post & Courier recently reminded you, “Nominees for judicial appointments deserve to be voted on” and Jim Haynes’s “nomination is long overdue for debate.”

We understand that you are troubled that some military leaders have expressed opposition to the Haynes nomination. However, their opposition is based largely on a misunderstanding of Mr. Haynes’s role as general counsel of the Defense Department.

For example, they ignore the fact that the Department of Justice holds the final word on the interpretation of federal law within the executive branch, including decisions on the status of al Qaeda detainees under the Geneva Convention, the constitutionality of military commissions, and the initiation of a state of war on 9/11. Haynes was bound by the Justice Department’s conclusions.

Nonetheless, the criticism you cite centers on holding Haynes responsible for, as Retired Rear Admiral Hutson put it, “the abuse of detainees by military personnel around the world.” In fact, detainee abuses – such as those at Abu Ghraib – were in violation of the very policies Jim Haynes is now being blamed with crafting. Multiple investigatory commissions, most notably the Schlesinger-Brown Commission and Admiral Church’s investigation, have found no link between policies set in Washington, D.C. and the abuses at Abu Ghraib.

With regard to Guantanamo Bay, Haynes played a vital role in ensuring that interrogations there were conducted only after full input by the Defense Department’s military and civilian attorneys. Moreover, the Wall Street Journal reports that Defense Secretary Rumsfeld rescinded his December 2002 decision to allow “coercive” interrogation techniques against al Qaeda detainees at Guantanamo “within six weeks after Pentagon lawyers took their concerns to Mr. Haynes, who then took them to Mr. Rumsfeld. . . . [I]ts reversal was due in no small part to Mr. Haynes.”

Regarding the more subjective criticism of Jim Haynes, some of the military leaders you cite have no first-hand knowledge of the allegations they make. For example, John Hutson was the Navy JAG during the Clinton administration and never served with Mr. Haynes. He criticizes Haynes for being “deaf to the advice of senior military and civilian lawyers,” but he was not around to witness their interaction. Likewise, you cite Retired Brigadier General Edward Rodriguez of the United States Air Force Reserves. But, General Rodriguez left active duty in 1974, stayed with the reserves only until 1999, and never worked with Mr. Haynes.

You also suggest that, when military lawyers participated in the interrogation working group in 2003, their views about proposed interrogation methods were completely ignored. Yet the record is clear that the final policy document achieved general consensus. The military lawyers were heard out, and their concerns were addressed. Maj. Gen. Thomas J. Romig, the Army’s top lawyer, testified before a subcommittee chaired by you, that the input “was accepted in some cases, maybe not in all cases. It did modify the proposed list of policies and procedures.”

We share your great respect for members of the U.S. military and your desire to take their view into account. Because the War on Terror has been controversial, producing many disagreements both within and without the military, it is particularly important to take opinions on all sides into account.

Since your letter cites the criticism of three retired military officers, but fails to credit the comments of retired officers who support Mr. Haynes’s nomination, we would like to share some of those comments with you in case you missed them.

In a letter to Sen. Arlen Specter, William K. Suter, former Assistant Judge Advocate General of the Army, said:

“I met Mr. Haynes when he was a military attorney in the Army General Counsel’s Office. After he was appointed General Counsel of the Army in March 1990, I worked closely with him on a daily basis.”

“Mr. Haynes is a superb lawyer in every respect. He performed his duties as the Army General Counsel with great distinction.”

“He was always available to discuss pending legal issues. . . . He respected Judge Advocates and their opinions. He is also a man of great character and integrity.”

In a letter to Sens. Arlen Specter and Patrick Leahy, Michael Marchand said:

“On July 1, 2005, I retired as a Major General from the United States Army after 31 years service as a Judge Advocate. . . . In my most recent assignment as The Assistant Judge Advocate General of the Army . . . I was privileged to work with William J. Haynes in his capacity as General Counsel of the Department of Defense.”

“In light of much inaccurate reporting on Mr. Haynes’ performance as general counsel during these last four years that our Country has been at war, I feel compelled to speak on the record . . . In my experience, Mr. Haynes has been more inclusive of the Judge Advocates General and the senior service lawyers of the armed services than any General Counsel of the Department of Defense. He has consistently and repeatedly reached out to the senior lawyers of the Department of Defense. . . . He has been respectful of our views, even on those occasions when he may not have agreed with one or more of us. The Department and its legal community – and the Country – have been well served.”

Woody Woodruff, former Chief of the Litigation Division in the Office of the Judge Advocate General, wrote in an e-mail:

“I worked with Jim Haynes on several very important issues while he was Army General Counsel. I found him to be bright, humble, hard-working, thoughtful, personable, and dedicated. The more I dealt with him the more impressed I became. . . . He was a great Army General Counsel. He was not one to play fast and loose with the law to craft a program to satisfy the political leadership.”

We would also like to share with you the comments of Bernard Meltzer, professor emeritus at the University of Chicago Law School and a former assistant trial counsel to Supreme Court Justice Robert Jackson at the Nuremberg Tribunal. Professor Meltzer worked with Mr. Haynes in writing the regulations that govern the trial of detainees before military tribunals. In a letter to Sens. Specter and Leahy, Meltzer wrote:

“I was impressed by [Mr. Haynes's] informed and sensitive concern for the rights and legitimate interests of those who might be tried before a military commission. He contributed to a set of regulations that, in my view, represent an appropriate balance between the protection of individual defendants and the protection of the security of our country. I strongly recommend that the Committee and the entire Senate act to confirm his appointment.”

Given the high regard in which Jim Haynes is held by those who have worked closely with him, it is easy to see why the American Bar Association twice gave him its highest rating, the Post & Courier called his qualifications “outstanding,” and your colleague Sen. Hatch deemed Haynes to be “one of the better nominees that I’ve seen.”

In light of Jim Haynes’s outstanding qualifications, the only explanation for your lack of support is your stated disagreement with the Bush Administration policies that Haynes implemented as the Defense Department’s general counsel. We respect your disagreement, but feel strongly that Haynes’s nomination should not be used a vehicle for expressing it.

Policy disputes with the Administration should not carry over to the Senate’s consideration of Mr. Haynes or any other judicial nominee.

Please consider that Mr. Haynes, if confirmed, will not be making policy. One reason he was nominated is that he understands and fully respects the vital difference between the role of a judge – interpreting the law without regard to personal policy preferences – and that of an executive branch official.

We are particularly concerned that your June 8 letter and the critics it quotes conflate policy disputes with improper behavior, frankly, in the way that Democrats do. For example, you ask whether civilian leaders like Haynes should be promoted “while military personnel are being punished?”

If you believe that Mr. Haynes has violated Department of Defense rules and deserves to be punished, that is certainly a legitimate basis for opposing his confirmation. Otherwise, please be mindful of the important distinction between policy decisions – even mistaken ones – and unlawful or unethical behavior.

If you, nonetheless, insist on evaluating Mr. Haynes’s worthiness to be a judge based on the Administration policies he was involved with, we urge you to do so by asking the appropriate questions at his hearing and voting against him on the Senate floor. By, instead, silently blocking his chance for a hearing, you are denying the American people an open and honest debate and imperiling the principle that qualified nominees deserve an up or down vote by the full Senate.

Moreover, by blurring the distinction between Democrats’ repeated use of obstructionist tactics and Republicans’ principled treatment of judicial nominees, you are harming the GOP’s chances in November.